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As I noted yesterday, the government submitted a status report in Rick Gates’ case yesterday — the first since Mueller submitted his report. In the past severalprior reports, the government had asked for sixty day extensions, but here, the government is asking for over three months.

The prosecutors who submitted the report — who are both on the Greg Craig prosecution team — make one reason for the longer extension clear: they’re scheduling the next status report for after Craig’s trial is expected to finish.

To date: (1) defendant Gates continues to cooperate with the government as required by his Plea Agreement, and (2) this Court has scheduled a trial in United States v. Craig, 19-CR-125 (ABJ), to begin on August 12, 2019,

Gates is not obviously mentioned in Craig’s indictment, but Paul Manafort is central to it, so presumably prosecutors want to have Gates explain why Manafort thought it so important that Craig hide the source of the funding for the Skadden Arps payment, Victor Pinchuk, which parallels the reasons why Manafort wanted everyone else who worked for him to keep their Ukrainian paymasters secret.

But prosecutors also mention Roger Stone’s November trial (though none of Stone’s prosecutors are on this filing).

another trial, United States v. Stone, 19-CR-18 (ABJ), to begin November 5, 2019

That’s interesting given the way the very redacted passages treating Stone’s charges in the Mueller Report flesh out Gates’ role as a liaison between Trump and Stone in the effort to optimize the WikiLeaks releases. Stone’s indictment had been coy on this point (so much so, I’ve wondered whether Big Dick Toilet Salesman told Mueller to stop mentioning Trump in charging documents after the Michael Cohen plea). It describes senior members of the campaign contacting Stone to find out what WikiLeaks had coming.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign.

And there’s this very pregnant passage using the passive voice to describe someone — the indictment doesn’t name who — directing a senior campaign official to contact Stone about further releases, which would lead to Stone’s efforts to find out, in part via Jerome Corsi, what was coming in late July and early August.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

Stone has denied it happened but said if it did, Gates would have been the one who reached out to him.

And while the passage of the Mueller Report describing all this is heavily redacted, it does seem to confirm that — after Trump and Manafort both showed great interest in the WikiLeaks releases, at least Manafort and probably both (given the reference to Manafort “separately” telling Gates to stay in touch with Stone) told Gates to reach out to Stone.

[snip]

In addition, Gates seems to have witnessed Trump take a call from Stone at which the then candidate’s rat-fucker informed him about the upcoming WikiLeaks releases.

Given all the documentary evidence the government has against Stone, Gates’ testimony is probably not necessary to prove that Stone lied to the House Intelligence Committee about his efforts to optimize the WikiLeaks releases. But it may serve several prosecutorial roles.

First, given that Stone was interacting with Trump directly on the WikiLeaks releases, Gates’ (as well as Michael Cohen and even Manafort’s, the latter of whom seems to have uncharacteristically told the truth on this to the grand jury) confirmation that such contacts occurred could easily explain Stone’s motive to lie to HPSCI — which would serve to protect Trump. This is all the more true given how brazenly Trump lied about this point in his sworn answers to Mueller.

I recall that in the months leading up to the election there was considerable media reporting about the possible hacking and release of campaign-related information and there was a lot of talk about this matter. At the time, I was generally aware of these media reports and may have discussed these issues with my campaign staff or others, but at this point in time – more than two years later – I have no recollection of any particular conversation, when it occurred, or who the participants were.

I do not recall being aware during the campaign of any communications between [Stone, Donald Trump, Jr., Manafort, or Gates] and anyone I understood to be a representative of WikiLeaks or any of the other individuals or entities referred to in the question.

[snip]

I was in Trump Tower in New York City on October 7, 2016. I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with [WikiLeaks, Guccifer 2.0, or DCLeaks] regarding the content or timing of release of hacked emails.

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

Gates will not only help to prove that Trump knew all this was going on, but that the campaign had dedicated resources to make use of Stone’s disclosures.

In addition, the government’s ability to tie the President directly to this part of the operation will make it harder (though nothing is beyond Trump) to pardon Stone before the trial, even while it will provide incentive to Trump to do so. Trump’s centrality in all this may be one reason William Barr is so aggressively protecting the Stone related disclosures, including with his refusals to share unredacted copies of the report with Congress: because Trump’s documented role in encouraging Stone’s efforts is far stronger than it is in any of the other potential incidences of election tampering.

Finally, all this may change the calculus if and when Julian Assange gets extradited to the US. Trump was asked about — but refused to answer — whether he considered a pardon for Assange.

Trump’s lies to Mueller are perhaps best documented as they pertain to WikiLeaks. Using Gates as a witness at Stone’s trial will make the trial an exhibition of the President’s lies as much as those of his rat-fucker.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

Because I’m wondering why Robert Mueller remains a DOJ employee, which makes it harder for the House Judiciary Committee to get his testimony by subpoenaing him, I wanted to observe the status of three different former Mueller dockets, three weeks after Mueller submitted his “final report.”

The mass swap: Paul Manafort

First, there’s Manafort’s (and Rick Gates’) docket. On March 25, the first work day after delivery of the report, every single Mueller prosecutor filed a notice of withdrawal (Kyle Freeny had already withdrawn on October 17, 2008):

Adam Jed

Andrew Weissmann

Elizabeth Prelogar

Greg Andres

Jeanie Rhee

Michael Dreeben

Scott Meisler

Those seven prosecutors were replaced with a remarkably large team, considering Manafort is supposedly done, Rick Gates only awaits sentencing, and Konstantin Kilimnik presumably will never show up in the US to be prosecuted on his single witness tampering charge. The team includes:

Deborah Curtis

Fernando Campoamor-Sanchez

Jonathan Kravis

Molly Gaston

Zia Mustafa Faruqui

The large team for a prosecution that’s supposedly over is interesting for two reasons. First, Campoamor-Sanchez and Gaston just filed a status report in Gates’ case saying he’s not ready for sentencing. They specifically mention both Greg Craig’s August 12 trial (both are on that prosecutorial team) and Roger Stone’s November 5 trial suggesting they’ll hold off on sentencing him until after those are done.

More interesting still has been the government response to WaPo’s effort to unseal the redactions in Manafort’s plea breach proceedings. At first, Dreeben and Jed filed appearances, signing a request for an extension on March 19, just three days before Mueller finished a report that included new details about issues (the sharing of polling data and the Ukraine “peace” deals) that made up one of the most redacted topics in the breach proceedings. On March 27, Dreeben, Jed, and DC AUSA Jonathan Kravis filed another request for an extension, citing the transfer of “this matter” to the DC US Attorney’s office. After securing that extension on March 28, Dreeben, but not Jed, filed a notice of withdrawal on March 29. On April 15, Kravis responded by saying that the government could not yet unseal the documents — it went through and listed all the documents at issue — because of ongoing investigations, plural, and privacy concerns; the filing said WaPo should check back in six months.

We know what some of the ongoing investigations are: there’s the government’s effort to learn via what kickback system Manafort got paid, as well as some other attempt to save Trump’s campaign in August 2016 where Manafort’s lies aligned with those of the person trying to avoid prosecution after he signed the plea.

Still, that doesn’t explain why the polling and Ukraine stuff can’t be unsealed. Unless the government’s trying to hide Manafort’s lies about it all. Or the government continues to investigate Manafort’s post-election efforts to help Russia carve up Ukraine.

The new addition: Mike Flynn

Compare that to Mike Flynn’s case, which seems to be a mid-point between Manafort and Gates’ status. There, Brandon Van Grack (who has been put in charge of DOJ’s new FARA unit) and Zainab Ahmad (who has moved back to her old prosecutor job) remain on the docket. On April 9, Deborah Curtis joined that docket. She seems to be dealing with the ongoing counterintelligence interests arising out of Flynn’s case. She has joined Brandon Van Grack in WaPo’s suit to obtain the sentencing documents not yet made public. The government has to submit a response to WaPo’s request in that case tomorrow.

And on May 7, prosecutors in the Bijan Kian case requested and got an extension on some discovery materials; previously there had been a delay in turning over materials related to Flynn’s cooperation with Mueller.

The hybrid: Roger Stone

Finally, there’s Stone’s case. That case is different because DC AUSAs were included from the time Stone was indicted.

Jonathan Kravis

Michael Marando

Several of the Mueller prosecutors filed withdrawal notices on April 16, presumably when the considerable work of redacting all the Stone references in the Mueller Report was done.

Jeannie Rhee

Rush Atkinson

Andrew Goldstein didn’t file his notice of withdrawal until April 30, the day of Stone’s last status hearing. Adam Jed, one of Mueller’s appellate specialists, filed a notice of appearance that day, not long after Stone submitted a bunch of largely frivolous challenges to his prosecution that tie in part to Mueller’s mandate. One other Mueller prosecutor, Aaron Zelinsky, remains on the docket.

Zelinsky’s continued presence on the docket may be tied to the Andrew Miller challenge to a subpoena. I’ve wondered if Mueller remains at DOJ to keep that and the Mystery Appellant subpoena challenges active.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

In the last two days, both Rick Gates’ and Paul Manafort’s plea deals have made news.

In Gates’ case, his lawyers have filed an unopposed motion to liberate him from his GPS device and curfew, arguing that the leverage of the plea deal itself is enough to keep him on the straight and narrow.

The plea agreement contains very serious consequences for Mr. Gates should he violate any of its terms or conditions. The advantages that attach to strict compliance with that agreement, and the extraordinary disincentives to violating that agreement, alone guarantee Mr. Gates’s appearance at any scheduled Court proceeding. Over a substantial period of time, now approaching one year, Mr. Gates has demonstrated his resolve to comply with all conditions of his release. Removing the GPS monitor and allowing Mr. Gates to travel within the Eastern District of Virginia and District of Columbia without restriction will surely not increase the risk of flight or make it less likely that Mr. Gates will appear in Court when required to do so.

The more interesting bit comes when, in a bid to talk up Gates’ cooperation, his attorneys reveal he’s been meeting with other prosecutors.

Both before the entry of the plea, and for many weeks thereafter, Mr. Gates, whenever requested, traveled to Washington, D.C., to appear at the Office of Special Counsel to be interviewed as part of his cooperation agreement. Those sessions have been numerous and they continue to this day.

[snip]

These meetings with the Office of Special Counsel continued during the weeks preceding the trial of co-defendant Paul Manafort in the United States District Court for the Eastern District of Virginia.

[snip]

Following that trial, Mr. Gates has continued to cooperate with the Special Counsel and with other federal investigators by attending current meetings at which he provides additional information. [my emphasis]

Rick Gates met in March and he met in July and he met in September, Thomas Green says. It’s the “other federal investigators” that’s of interest, as it suggests his cooperation extends beyond Mueller’s case in chief.

But that may not mean all that much. After all, Gates’ cooperation would be useful for the three cases Mueller referred to SDNY (involving Tony Podesta, Vin Weber, and Greg Craig), as well as for Stephen Calk, the Chicago banker who gave Manafort a loan in hopes of getting an appointment with the Trump Administration. Gates would surely also have information that might corroborate Sam Patten’s cooperation.

Still, it’s possible those “other federal investigators” include some of the “garden variety” Trump corruption I keep suggesting might also get spun off, such as the non-Russian Inauguration pay-to-play.

Meanwhile, in EDVA, TS Ellis is being TS Ellis. Yesterday, he filed an order saying that the parties in Manafort’s EDVA prosecution can’t just defer resolution of the ten hung counts against him until after Mueller is done with his cooperation. He scheduled a hearing for a week from Friday, on October 19, so the process of sentencing can begin. At that hearing, Ellis expects the parties to “address dismissal of the outstanding counts on which the jury deadlocked.”

Dismissing the charges may be no big deal. Manafort is on the hook for 210 – 262 months if he breaches his plea agreement in DC, before any state charges, and some of the charges that Ellis would dismiss could be charged in VA, aided by Manafort’s admission of guilt in them in the plea. As Popehat notes, cleaning up these charges is consistent with good docket management.

The push for the government to move forward on cooperation is more interesting as it may require the government to weigh in on the value of Manafort’s cooperation while he’s still discussing things with Mueller’s team. Of particular interest, any discussion on cooperation may reveal how much Manafort has cooperated against the President.

I’m also interested in timing. Manafort’s lawyers submitted their notice that they won’t challenge anything that happened in that trial right on schedule, on September 20. The government filed their response just under the week later that they had under Ellis’ schedule, on September 26. But Ellis took two weeks before he issued this hurry up and wait order, setting a hearing for October 19, at which any sentencing schedule is likely to be after Manafort’s next status hearing in DC.

In any case, it’s not clear that Ellis’ haste will help Manafort much. Even if Ellis is perturbed that Mueller used his courtroom to flip a witness against Trump, the PSR will show that Manafort is an admitted criminal in the DC charges, meaning his sentence should be harsher than it would with any kind of cooperation assistance. And prosecutors can just defer any 5K statement, and instead account for cooperation with a Rule 35 motion submitted after the fact. In any case, the plea envisions concurrent sentencing, and if Manafort does’t cooperate willingly, he’ll face 10 years in the DC plea, which is longer than Ellis is likely to have sentenced him on anyway.

So it seems like Mueller can still retain the breathtaking upper hand they have with Manafort, and defer any public statement on cooperation until later.

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward). Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

Back in September, Steve Bannon agreed on 60 Minutes that firing Jim Comey was the stupidest decision in modern political history.

In a “60 Minutes” interview that was posted online Sunday night, Bannon was asked whether he considered Comey’s dismissal — which ignited a political firestorm and directly led to the appointment of a special counsel to investigate Russian meddling in the 2016 election, including potential ties to Trump’s campaign — the biggest mistake in political history.

Bannon responded, “That would be probably — that probably would be too bombastic even for me, but maybe modern political history.

“He went on to acknowledge that if Comey had not been let go, it’s unlikely that the probe led by special counsel Robert Mueller would have been established.

“I don’t think there’s any doubt that if James Comey had not been fired, we would not have a special counsel, yes,” he said. “We would not have the Mueller investigation. We would not have the Mueller investigation and the breadth that clearly Mr. Mueller is going for.”

At that time, Bannon insisted that he faced no risk from even the expanded Mueller investigation, and hadn’t even lawyered up.

All that changed, of course, after he ran his mouth to Michael Wolff. Bannon claimed to be offended by the June 9, 2016 Trump Tower meeting. In his apology he would even say the entire meeting offended his life’s work making movies about fighting “the evil empire.”

“My comments about the meeting with Russian nationals came from my life experiences as a Naval officer stationed aboard a destroyer whose main mission was to hunt Soviet submarines to my time at the Pentagon during the Reagan years when our focus was the defeat of ‘the evil empire’ and to making films about Reagan’s war against the Soviets and Hillary Clinton’s involvement in selling uranium to them.”

But what really irked Bannon is that when Don Jr, Paul Manafort, and Jared Kushner met with Russians in an effort to obtain dirt on Hillary Clinton, they didn’t use lawyers as cutouts.

“The chance that Don Jr. did not walk these jumos up to his father’s office on the twenty-sixth floor is zero,” said an astonished and derisive Bannon, not long after the meeting was revealed.

“The three senior guys in the campaign,” an incredulous Bannon went on, “thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the twenty-fifth floor—with no lawyers. They didn’t have any lawyers. Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately. Even if you didn’t think to do that, and you’re totally amoral, and you wanted that information, you do it in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people and go through everything and then they verbally come and tell another lawyer in a cut-out, and if you’ve got something, then you figure out how to dump it down to Breitbart or something like that, or maybe some other more legitimate publication. You never see it, you never know it, because you don’t need to. . . . But that’s the brain trust that they had.”

On Monday, the home, hotel, and office of the lawyer Trump has long used as such a cutout, Michael Cohen, got raided. Among the things the FBI sought — in addition to information on Cohen’s own corrupt business — were communications Trump and that lawyer and others had about the Access Hollywood video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be. [my emphasis]

Bannon — and Marc Kasowitz, who sent a lawyer to meet with Trump in the wake of news of the raid — was probably among those associates. After all, Bannon also told Wolff that he and Kasowitz had to deal with a number of “near-death problems on the campaign” pertaining to women — like Stormy Daniels and Karen McDougal — making legal threats against Trump.

Unable to hire prestige talent, Bannon turned to one of the president’s longtime hit-man lawyers, Marc Kasowitz. Bannon had previously bonded with Kasowitz when the attorney had handled a series of near-death problems on the campaign, including dealing with a vast number of allegations and legal threats from an ever growing list of women accusing Trump of molesting and harassing them.

Now, Steve Bannon, the guy who claimed firing Jim Comey was the stupidest recent political decision, the guy who wasn’t so much opposed to political rat-fucking as he was opposed to doing it without using lawyers as a cutout, is shopping a new plan to get Trump out of his legal woes: fire Rod Rosenstein.

Stephen K. Bannon, who was ousted as White House chief strategist last summer but has remained in touch with some members of President Trump’s circle, is pitching a plan to West Wing aides and congressional allies to cripple the federal probe into Russian interference in the 2016 election, according to four people familiar with the discussions.

The first step, these people say, would be for Trump to fire Deputy Attorney General Rod J. Rosenstein, who oversees the work of special counsel Robert S. Mueller III and in recent days signed off on a search warrant of Trump’s longtime personal lawyer, Michael Cohen.

Bannon also wants to fire Ty Cobb, one of Trump’s remaining semi-legit lawyers, as part of an effort to invalidate all the testimony from White House officials — including himself!!!! — based on the claim it should have been covered by executive privilege.

And he is telling associates inside and outside the administration that the president should create a new legal battleground to protect himself from the investigation by asserting executive privilege — and arguing that Mueller’s interviews with White House officials over the past year should now be null and void.

“The president wasn’t fully briefed by his lawyers on the implications” of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”

[snip]

Bannon believes Trump can argue he was given poor counsel by his lawyers on Russia, including Ty Cobb, who has encouraged a cooperative approach to Mueller’s team.

“Ty Cobb should be fired immediately,” Bannon said.

I’m agnostic about whether the Access Hollywood video actually relates to the Russian investigation. If it does, the only conceivable reason to refer it to Southern District of NY would be to establish a clean team — but Mueller’s team has already handled interactions with investigations involving two lawyers and/or legal teams, Melissa Laurenza (who testified that Manafort led her to lie on FARA forms), and Skadden Arps. I do think it possible — highly likely, actually — that Cohen may have been used as a cutout in some hotel room in New England to cover-up other sensitive issues.

But given Bannon’s response, the investigation into Cohen’s cover-up of Trump’s problems with women — including both the Access Hollywood tape and the legal negotiations with Daniels and McDougal — probably implicates Bannon as well as Cohen.

And so Bannon wants to do what Kushner did when he, similarly, realized how much a legal investigation jeopardized him personally: fire the guy running the investigation.

Indeed, Bannon seems so panicked he can’t even remember that such moves rank among the stupidest in modern political history.

Update: One more thing about the Stormy/McDougal/Access investigation. That may come directly out of Bannon’s own testimony, which would explain why he’d want to try to invalidate it.

https://www.emptywheel.net/wp-content/uploads/2018/01/170427-rod_rosenstein_official_0.jpg46873750emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2018-04-11 21:57:162018-04-11 23:03:24Bannon Aims to Best Jared Kushner's Biggest Mistake in Modern Political History

Tomorrow, Alex Van der Zwaan, the former Skadden associate who unsuccessfully attempted to hide ongoing conversations between him, Rick Gates, Konstantin Kilimnik, and (presumably) Greg Craig that took place in September and October 2016 will be sentenced. The government is seeking prison time, his lawyers are seeking probation (in part to keep him out of our nightmarish deportation process).

In advance of the sentencing (and today’s filing explaining how all this is authorized under the Special Counsel mandate Rod Rosenstein gave to Mueller), I wanted to lay out a few more details revealed by the public documents in this case, including the prosecution and defense arguments on sentencing.

Taken together, the documents reveal a few interesting wrinkles.

First, the defense argues that Van der Zwaan didn’t hide the communications he had with Rick Gates and Konstantin Kilimnik in fall 2016 to hide the ongoing relationship Trump’s onetime campaign manager had with someone the FBI still believed had ties to GRU, the Russian intelligence agency behind the hack-and-leak of the DNC emails. Rather, his defense lawyers claim Van der Zwaan hid those things (or rather, attempted to hide them, using means it’s shocking a lawyer would believe might work) because he didn’t want to reveal to the Skadden lawyers who represented him in his first interview with Mueller’s team that he had recorded his conversations in that time period with Greg Craig.

He knew it was improper to have recorded his conversation with the Skadden senior partner; indeed, he understood that he could be fired for having done so. He also knew that a truthful disclosure about his September 2016 calls with Gates and Person A would almost inevitably lead to questioning that could quickly get to the existence of the recordings. During the interview, Alex was keenly aware that he was not speaking only to OSC. Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.

The explanation is unconvincing (so is his lawyers’ claim that Van der Zwaan couldn’t read the Ukrainian document he received). After all, Craig knew (and presumably has also told Mueller’s team unless he’s at legal jeopardy himself) of some of those emails. So Van der Zwaan was bound to be asked the same kinds of questions in any case. Which he was. Which is how he came to confess to making the recordings (and keeping his own notes) in the first place.

It’s not entirely clear why he made that recording. The defense filing claims he didn’t tell anyone about them. But given another detail laid out by all this paperwork, I at least wonder whether he intended to share it with Gates or Kilimnik.

Consider the “going native” claim made about Van der Zwaan by an unnamed witness (who might be Greg Craig).

Yet, although he had been instructed not to share advance copies of the report with the public relations firm retained by the Government of Ukraine, van der Zwaan had, in the words of one witness, “gone native”—that is, he had grown too close to Manafort, Gates, and Person A.

While we knew that Van der Zwaan had shared the Skadden report with Gates and Kilimnik back in 2012, in direct violation of Skadden’s wishes, the defense filing reveals another key detail. In 2012, either while he was moonlighting while being paid by Skadden to help Manafort, Gates, and Kilimnik spin the Skadden report to make the prosecution of Tymoshenko look kosher or just after, Van der Zwaan was talking about working for Manafort and Gates.

That’s another good reason to hide all this: Van der Zwaan was ignoring Skadden Arps instructions at a time when he was considering a job with Gates and Manafort, who weren’t technically the client, but who were laundering the money to pay Skadden with.

Finally, while I don’t make as much of the tie between Van der Zwaan and his father-in-law, Alfa Bank founder German Khan, as others do, the defense filing provides more details on when Van der Zwaan joined the family. He and Eva Khan first met in “spring” 2016; elsewhere that gets described as a year before their marriage, which took place in June 2017.

Which is to say, the entirety of Van der Zwaan’s relationship with the Khan family has taken place during the Russian operation and attempt to cover up the tampering in the US election.

Just for fun: Back in 2008, American diplomats passed on complaints about Khan’s heavy-handedness in the operations of BP Russia, including the anecdote that Khan said he considers The Godfather to be his “manual for life.”

At dinner that evening, Khan had told a stunned Summers that The Godfather was his favorite movie, that he watched it every few months, and that he considered it a “manual for life.”

There’s actually no reason to believe that Van der Zwaan would have become a valuable enough resource that Khan would marry off his daughter to him, Godfather like.

But Van der Zwaan’s behavior in 2016 may make better sense considering the full context of that “going native” comment.

Update: I see from Zoe Tillman’s coverage of Van der Zwaan’s sentencing (where he was given a month in jail) that his lawyers fibbed a bit when they said his second grand jury appearance was entirely voluntary.

[Andrew] Weissmann refuted the idea that van der Zwaan voluntarily came back to tell the truth, saying he had been served with a grand jury subpoena after his first meeting in November 2017 and would have been required to return to the United States anyway.

2012: Van der Zwaan working on Tymoshenko report in facilitating role

July to early August 2012: Van der Zwaan provides unauthorized copy of Skadden report on Yulia Tymoshenko to PR firm engaged by Ukraine’s Ministry of Justice

2012-2013: Van der Zwaan conducts discussions over Gmail about working directly for Gates and Manafort; these were among the other materials Van der Zwaan attempted to destroy in advance of his Mueller interview

2014: Eva Khan moves to London to study art (she is 11 years younger than Van der Zwaan)

Spring 2016: Van der Zwaan and Eva Khan meet

September 2016: First public allegations of spam traffic between Trump marketing account and Alfa bank

September and October 2016:

Rick Gates contacts Van der Zwaan, urges him to contact Kliminik and sends him a document in Ukrainian

September 12, 2016: Van der Zwaan emails Konstantin Kilimnik, who asks him to contact him on Telegraph or WhatsApp

Van der Zwaan reports this to (presumably) Greg Craig

Van der Zwaan reports back to Gates

[These communications continue as a series]

January 2017: Paul Manafort provides Trump a strategy to rebut the Russian investigation by discrediting the Steele dossier

January 2017: Brian Benczkowski leaves transition team and returns to Kirkland & Ellis

March to May 2017: Pending Assistant Attorney General nominee Brian Benczkowski advises Alfa Bank on lawsuit against Buzzfeed

April 2017: Jeff Sessions asks Benczkowski if he wants to be AAG for Criminal Division

May 26, 2017: After months of consultation with Alfa Bank (and German Khan by name) sue Buzzfeed over the Steele dossier

June 2017: Van der Zwaan and Khan married; she applies for permanent residency as his spouse

Prior to November 3, 2017: Van der Zwaan gives Skadden his laptop from the 2012 time frame

November 3, 2017: Van der Zwaan participates in eight hour voluntary interview, represented by Skadden Arps lawyers; during that interview, FBI confronts him with an email he withheld from Skadden’s discovery

November 16, 2017: Van der Zwaan returns to the US

November 17, 2017: Van der Zwaan surrenders his passport to the FBI and retains new counsel (this is probably when Skadden fired him)

A fuck-ton has happened in the Mueller investigation already this month. Amid the noisy pleas and indictments, we’ve seen indications of hidden cooperation from a range of people, cooperation that may point to where Mueller’s next steps are.

Here, arranged by the date of the development, are hints at who either was or soon is likely to be talking to Mueller’s team.

February 1: In a proffer to Mueller’s team, Rick Gates lied about a March 19, 2013 meeting with Paul Manafort, Vin Weber, and Dana Rohrabacher.

Rohrabacher’s statement in response to the guilty plea is inconsistent with the version laid out in the plea, suggesting he’s not the means by which Mueller’s team learned it was a lie.

After the guilty plea on Friday, a spokesman for Rohrabacher, who has sought better relations with Russia, said: “As the congressman has acknowledged before, the meeting was a dinner with two longtime acquaintances –- Manafort and Weber –- from back in his White House and early congressional days.”

“The three reminisced and talked mostly about politics,” the spokesman said. “The subject of Ukraine came up in passing. It is no secret that Manafort represented Viktor Yanukovych’s interests, but as chairman of the relevant European subcommittee, the congressman has listened to all points of view on Ukraine.”

This suggests someone else provided the version of the meeting the government included in the plea. While it’s possible the other version came from Gates’ former lawyers, it’s more likely the version came from someone else. Vin Weber is the most likely source of that information.

Back in August 2016, as news of the secret ledger was breaking,Weber suggested he may have been misled by Manafort, both as to the purpose of his lobbying and regarding the need to register as a foreign agent for Ukraine. If he felt that way in August 2016, I imagine he came to feel that even more strongly as Manafort’s legal woes intensified.

February 9: Returning a call from John Kelly but speaking to Don McGahn, Rod Rosenstein spoke of “important new information” about Jared Kushner that will delay his clearance.

Given all the evidence that suggests Jared faces very significant exposure in this investigation, this new information could be any number of things. But two possibilities are likely. First, it might reflect Jared’s January 3 disclosure of additional business interests in yet another update to his SF-86, or his family’s increasing debt over the last year.

More likely, it reflects things the government has learned from Mike Flynn (who has an incentive to burn Jared, given that the President’s son-in-law was asked for and didn’t provide exonerating information tied to Flynn’s own lies to the FBI). Indeed, that seems to be one theory of those who reported on this phone call.

Kushner’s actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak. Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.

All that said, there are two more possibilities. Given that she appears to have lied to the Senate Foreign Relations Committee in her confirmation process, KT McFarland would be an obvious follow-up interview after the Mike Flynn plea; she asked Trump to withdraw her nomination to be Ambassador to Singapore on February 3. And February 9 might be (though probably isn’t, quite) late enough to catch the first sessions of Steve Bannon’s 20 hours of interviews with Mueller, and Bannon has long had it in for Jared.

February 14: Alex Van der Zwaan got caught and pled guilty to lying about communications he had with Rick Gates, Konstantin Kilimnik, and Greg Craig in September 2016. On top of whatever he had to say to prosecutors between his second interview on December 1 and his plea on February 14, both Craig and Skadden Arps have surely provided a great deal of cooperation before and since September 2016. (As I was finishing this, NYT posted this story that details some, but not all, of that cooperation.)

February 16: As I noted in my post on the Internet Research Agency indictment, Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation. As a reminder: Florida Republicans are those who most tangibly can be shown to have benefitted from Russia’s hack-and-leak, given that Guccifer 2.0 leaked a slew of Democratic targeting data for the state. (In perhaps related news, this week Tom Rooney became the third Florida Republican member of Congress to announce his retirement this cycle, which is all the more interesting given that he’s been involved in the HPSCI investigation into Russian tampering.)

February 23: Manafort’s superseding indictment (a version of which was originally filed February 16) added the description of the Hapsburg Group for former European officials who lobbied at the direction (to some degree via cut-outs) of Manafort.

MANAFORT explained in an “EYES ONLY” memorandum created in or about June 2012 that the purpose of the “SUPER VIP” effort would be to “assemble a small group of high-level European highly influencial [sic] champions and politically credible friends who can act informally and without any visible relationship with the Government of Ukraine.” The group was managed by a former European Chancellor, Foreign Politician A, in coordination with MANAFORT.

It may be that the government only recently obtained this document (meaning it was not among the 590,000 pages of documents obtained and turned over to Manafort in discovery thus far). But it’s likely this also reflects further testimony. Former Austrian Chancellor Alfred Gusenbauer denied he is Foreign Politician A to BBC, though that may be a non-denial denial tied to his claim he wasn’t directed by Manafort and only met him a few times (this Austrian story suggests only he doesn’t remember what American or English firm paid him). NYT reported that Gusenbauer’s lobbying during the relevant time period was registered under Mercury Public Affairs. This is another piece of evidence suggesting the group — and Vin Weber personally — has been cooperating since the original indictment.

Note, I assume that Mercury/Weber’s cooperation has been mirrored by Tony Podesta’s.

I doubt I’ll be done working my way through the new Paul Manafort and Rick Gates charges before such analysis would be overtaken by events (like the on-again flip of Gates). For now, Quinta Jurecic’s analysis is quite good.

Best as we understand, former Skadden associate van der Zwaan pled guilty, with no forward cooperation requirement, for having hidden some communications he had with Rick Gates, Greg Craig (who must be the senior partner described), and Konstantin Kilimnik (believed to be Person A) in September 2016 about the aftermath of a report Skadden had done on the prosecution of Yulia Tymoshenko.

In or about September 2016, VAN DER ZWAAN spoke with both Gates and Person A regarding the Report. In early September 2016, Gates called VAN DER ZWAAN and told him to contact Person A. After the call, Gates sent VAN DER ZWAAN documents including a preliminary criminal complaint in Ukraine via an electronic application called Viber. VAN DER ZWAAN then called Person A and discussed in Russian that formal criminal charges might be brought against a former Ukrainian Minister of Justice, Law Firm A, and Manafort. VAN DER ZWAAN recorded the call. VAN DER ZWAAN then called the senior partner on the Report at Law Firm A and partially recorded that call. Finally, VAN DER ZWAAN called Gates and recorded the call. VAN DER ZWAAN also took notes of the calls.

Prior to the November 3, 2017, interview, VAN DER ZWAAN did not produce to Law Firm A and deleted and otherwise did not produce emails he possessed that he understood had been requested by either the Special Counsel’s Office or Law Firm A, or both, including an email in Russian dated September 12, 2016 in which Person A asked VAN DER ZWAAN to contact Person A and to use an encrypted application.

One thing Van der Zwaan would have hidden was that he communicated with Gates after Paul Manafort had left the campaign, September 2016, as the Trump campaign was trying to clean up their taint from Manafort’s Ukraine stench.

Given the details in the information, it appears that in his November 3, 2017 interview, after he lied about when he had most recently talked with Kilimnik and Gates, he was asked about the email he didn’t turn over to Skadden and the government.

During the November 3, 2017, interview, VAN DER ZWAAN knowingly and intentionally falsely stated the following:

a. his last communication with Gates was in mid-August 2016, which consisted of an innocuous text message;

b. his last communication with a longtime business associate of Manafort and Gates in Ukraine (Person A) was in 2014, when he talked with Person A about Person A’s family; and

c. he did not know why Law Firm A had not produced to the Special Counsel’s Office a September 2016 e-mail between him and Person A.

This seems to suggest that before the end of Van der Zwaan’s first interview, they already confronted him with the fact that he was lying.

But that wasn’t his only interview. Van der Zwaan had a second interview (where he apparently added to his lies) on December 1. (NYCSouthpaw made this observation.)

I’ll probably return to the second interview.

For now, what I’m primarily interested in is that on November 3, 2017, the government had the email between Van der Zwaan and Kilimnik where the latter told the former to move their conversation to an (unnamed) encrypted app, and by the end of the interview confronted him with that fact.

I previously noted (with surprise) that Kilimnik used Gmail for his November 2017 correspondence with Paul Manafort helping to edit an op-ed to push back against his charges. If Manafort didn’t already know the Feds had obtained a bunch of Gmail (and — as yesterday’s superseding indictment makes clear, his own firm’s email), a sealed December 8 declaration that was unsealed on January 3 would have made that clear.

It continues to surprise me that these thugs never thought about how accessible PRISM-based communications were to the Feds, unless Kilimnik has reason to be happy that his American correspondents will be seen by the FBI.

I guess it’s not just Hope Hicks who underestimates how accessible email is to criminal investigators.

What’s newsworthy about this call for transparency, though, is how shrill it is.

But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreedupon domestic and international legal process and standards.

Perhaps this shrillness is why Koh ends the speech with a grandiose invocation of our “better angels.”

Because I am an American who loves his country, I have served it for ten years of my professional career. My former professor and former Legal Adviser Abram Chayes once said, after he had sued the United States government from the academy, “I have always thought there is nothing wrong with an American lawyer holding the United States to its own best standards.” It is in that spirit that tonight, from this important podium, I call my country to its own best values and principles. As President Lincoln famously said, there is still time–indeed, it is high time– for Americans once again to answer to the “better angels” of our national nature.

Though it should be noted that Attorney Abe Lincoln appealed for us to answer to our better angels at the beginning of his service in the Executive Branch, not after he had left that position of influence (something John Wilkes Booth prevented in any case). Why is Harold Koh saying this now?

It’s how Koh relitigates the last of those battles, closing Gitmo, I find most interesting. He calls for the appointment of a Greg Craig type to implement the plan Craig tried to implement himself in the first year of the Obama Administration.

First, and foremost, he must appoint a senior White House official with the clout and commitment to actually make Guantanamo closure happen. There has not been such a person at the White House since Greg Craig left as White House Counsel in early 2010. There must be someone close to the President, with a broad enough mandate and directly answerable to him, who wakes up each morning thinking about how to shrink the Guantanamo population and close the camp.

Second, this White House Envoy need not develop a new paradigm for closing Guantanamo. He or she merely needs to implement the National Archives framework that the President announced three years ago. The White House Envoy should lead the Administration’s efforts to implement the three-part framework for closure of the Guantanamo detention facility specified in the President’s 2010 speech at the National Archives. That speech described a framework for how this closure could happen: through diplomatic transfers of those individuals who could be safely transferred, prosecution of those who can be tried before civilian courts when possible and military commissions where that is the only option, and third, by commencing the long-overdue legally mandated periodic review of so-called Law of War Detainees to see if any can be released, because of changes either in their attitude or in the conditions of the country to which they could be transferred.

Now, I’m all in favor of closing Gitmo and this might be one way to do it. Koh actually improves on the prior plan by admitting the indefinite detainees will have to be released as the war is over, which is legally correct but misapprehends why they’re not being released and why we have to have a Forever War to justify keeping them silent and imprisoned forever.

But Koh’s map for closing Gitmo also misrepresents why appointing Greg Craig himself to carry out the Gitmo task didn’t work.Read more →

https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2013-05-09 12:10:512013-05-09 12:23:11Harold Koh Relitigates the Argument He Already Lost

GQ has another of those articles describing Eric Holder’s failed efforts to restore DOJ’s independence and sustain rule of law as Attorney General. There are a few new details in there — such as details of what torture was described in the CIA IG Report but must be among the redactions (notably, strangling of one prisoner).

As he flipped through the pages of one report, Holder told me, reading descriptions of field agents holding a power drill to the head of one prisoner, strangling another, battering some, waterboarding others, and threatening to rape their wives and children, he was filled with “a combination of disgust and sadness.”

The piece is more rich in capturing Holder’s self-denial, his attempts to ignore that his actions directly violate principles he laid out before he became Attorney General.

“But before the inauguration,” I said, “both you and the president said that habeas should apply to enemy combatants.”

“I’m not sure I ever opined on that,” Holder said.

“I could read you a quote.”

Holder laughed uncomfortably.

“Here’s the quote: ‘Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,’ and a few other things.”

Holder was silent. “But I was talking about Guantánamo,” he said. “I’m pretty sure I was talking about Guantánamo.”

But I’m most interested in a fairly subtle moment, when a former White House official (it might be someone like Greg Craig) made it clear that Obama, not Rahm, made the decision to have the White House pick the venue for Khalid Sheikh Mohammed’s trial.

“It was wildly unfortunate,” says David Ogden, Holder’s former deputy attorney general. “The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable.” Others are less forgiving, calling Obama’s capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. “There is an important principle at stake here,” Holder told me. “You don’t shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don’t stand for the rule of law when it comes to a case that is politically difficult to bring.” Among Holder’s political allies, the blame for KSM lay not with Rahm but Obama. “Rahm was critical,” says one former White House official. “But the president ultimately made the call.”

The whole piece seems to lay out Holder’s angst as he decides to stick around after being stripped of his independence. Given this detail — the the President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving.

https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2010-11-12 04:07:562010-11-12 04:07:56"The President Ultimately Made the Call"